Hoang v Minister for Immigration

[2013] FCCA 89

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOANG v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 89

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a partner visa – Tribunal relying upon an adverse report of a home visit by departmental officers – whether the Tribunal should have investigated claimed errors in the report considered.

Legislation:
Migration Act 1958 (Cth), ss.5F, 56, 140A, 251, 357A, 359, 363, 424A

Migration Regulations 1994 (Cth)

Khan v Minister for Immigration [2011] FCAFC 21; (2011) 192 FCR 173
M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319
M164/2002 v Minister for Immigration [2006] FCAFC 16
Minister for Immigration v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Prasad v Minister for Immigration (1985) 6 FCR 155
Saeed v Minister for Immigration [2010] HCA 23; (2010) 241 CLR 252
SZMYO v Minister for Immigration [2011] FCA 506; (2011) 121 ALD 272

Applicant: THU TRANG HOANG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2396 of 2012

Judgment of: Judge Driver

Hearing date: 19 April 2013

Delivered at: Sydney

Delivered on: 31 May 2013

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Counsel for the Respondents: Ms B Tronson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 22 October 2012 is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2396 of 2012

THU TRANG HOANG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. Ms Hoang seeks judicial review of a decision of the Migration Review Tribunal (Tribunal) made on 17 September 2012.  The Tribunal affirmed a decision of a delegate of the Minister not to grant her a partner visa.  Ms Hoang is concerned about the fairness of the process followed by the Tribunal in relation to a report of a home visit conducted by officers of the Minister’s Department at the premises where Ms Hoang and her husband were said to be living. 

2. In this judgment I have found that, whether or not the report of that visit is reliable, the process followed by the Tribunal in dealing with that report was fair.

3. The following statement of background facts is derived from the submissions of the parties. 

4. The applicant, Ms Hoang Thu Trang, a citizen of Vietnam, married Mr Nguyen Thien Hoang Anh, an Australian citizen[1], in Vietnam on 16 June 2007[2]. Her application to migrate to Australia as a spouse was lodged in Moscow where she had been working selling clothes in a market[3] on 19 November 2007[4].

   [1] citizenship certificate at CB 71

   [2] Court Book (CB) 1, 3; Marriage certificate and translation at CB 62-63

   [3] CB 304 [31]

   [4] CB 11, 33

5. Ms Hoang was interviewed in Moscow with the aid of a Vietnamese interpreter on 29 January 2008[5].  She said in that interview that she met Mr Nguyen whilst both were on holiday in Vietnam – she from Russia and he from Australia. They kept in touch and the relationship developed from there[6].

   [5] CB 74-79

   [6] CB 74-75

6. On 23 September 2008 Ms Hoang was notified that she had been granted a Spouse Provisional (Temporary) (subclass 309) visa[7]. That visa was valid until the application for a permanent visa (sub class 100) was determined.  She arrived in Australia on 19 October 2008.

   [7] CB 93-95

7. On 6 May 2010 the Department’s “Bona Fides Unit” (BFU) conducted an inspection of the marital home at Bonnyrigg Heights. A report was written on 12 May 2010, and it recorded the inspectors’ opinion that the relationship was not genuine[8].  It was largely as a result of this inspection and assessment that the Delegate found herself unsatisfied that the couple were in a genuine spousal relationship and therefore that Ms Hoang did not meet the requirements of Schedule 2, clause 100.22(2). The permanent spouse visa was thus refused[9]. 

   [8] the report can be found at CB 150-153

   [9] CB 117-121

8. By letter dated 25 August 2010, Ms Hoang was notified that her application for a partner visa had been refused by a Delegate of the Minister (Delegate)[10].

   [10] CB 105‑121

9. A significant part of the reasons given by the Delegate was[11]:

   Although evidence has been provided which indicates that Ms Hoang [the applicant] and Mr Nguyen [her husband] both receive mail at [the relevant address], there is still no substantial evidence to support that the relationship between Ms Hoang and Mr Nguyen satisfies regulation 1.15A.

   [emphasis added]

   [11]CB 118.10

10. On 10 September 2010, Ms Hoang applied to the Tribunal for review of the Delegate’s decision[12].

    [12] CB 122‑128

11. The Tribunal issued an invitation to Ms Hoang to attend a hearing scheduled for 8 August 2012. She appears also to have been sent a “Minute” prepared by the BFU containing its report of 12 May 2010 on the home visit six days earlier[13].  That minute records that:

    [13] CB 150-153

    a)the visit took 15 minutes (18.25-18.40);

    b)the team leader was Sumeet Sharma and the “note taker” was Karen Huang;

    c)Mr Nguyen answered the door and informed the inspectors that Ms Hoang was at work in Newcastle;

    d)there were no photos of Ms Hoang on the walls or on any cabinets in the living areas;

    e)there were several photos of “an unknown female” in the lounge room and in the, “kitchen dinning area” (sic);

    f)Mr Nguyen stated that he lived in the house with Ms Hoang and the owner of the house;

    g)Mr Nguyen appeared uncertain about his wife’s employment and how she travelled to that employment;

    h)the inspectors described the premises as a single storey brick house with three bedrooms and two bathrooms;

    i)they described the first bedroom as containing a queen bed and two pillows.  A woman who identified herself as the owner of the house was lying on the bed watching television.  It appeared to the inspectors that the photos in the house, including in Mr Nguyen’s bedroom were of her;

    j)there were women’s clothes in the wardrobe;

    k)there was an elderly woman in the second bedroom.  Mr Nguyen first advised that she was the owner of the house and then that he did not know who she was;

    l)the inspectors did not see the third bedroom.

12. The day before the hearing Ms Hoang’s solicitors and migration agents submitted a large volume of documents to the Tribunal, including evidence of joint bank accounts[14].

    [14] CB 205-223; 239-242

13. Ms Hoang attended the hearing before the Tribunal on 8 August 2012, together with her husband and her migration agent[15].

    [15] CB 267‑269

14. Ms Hoang, by her migration agent, provided further documentary evidence to the Tribunal at the hearing[16].  Both Ms Hoang and her husband gave oral evidence[17].

    [16] CB 157‑257

    [17]CB 303‑306 [28]‑[48]

15. At the hearing Ms Hoang gave evidence about her move to Australia in October 2008[18], that she lived in a unit in Cabramatta before moving to her then present accommodation in Bonnyrigg which was the house visited by the BFU[19], and that she had worked in a nail salon in Newcastle[20].  She explained the fact that she was not at home on the evening of the home visit by saying that this was a Thursday evening, and being a late night shopping night she did not get home until late[21].

    [18] CB 304 [32]

    [19] CB 304 [33]

    [20] CB 304 [34]

    [21] CB 305 [41]

16. The Tribunal also asked questions of Ms Hoang about sharing of household responsibilities[22], the couple’s financial circumstances[23] and social activities[24].

    [22] CB 304 [36]

    [23] CB 304 [37]- 305 [38]

    [24] CB 305 [39]

17. Mr Nguyen also gave evidence in which he disputed some of the facts stated in the inspectors’ report[25].

    [25] CB 306 [45]

18. On 9 August 2012, the Tribunal sent a letter to Ms Hoang (the 359A letter) inviting her “to comment on or respond to certain information which the Tribunal consider[ed] would … be the reason, or a part of the reason, for affirming the” Delegate’s decision.[26]

    [26] CB 259‑266

19. The 359A letter set out the text of the Home Visit Report.

20. Ms Hoang responded on 6 September 2012.  She submitted:

    a)her own statutory declaration in which she stated that at the time of the visit she was still at work, and addressed the question of the landlady’s presence on their flights to and from Vietnam[27];

    [27] CB 274-5

    b)a statutory declaration from Ms Hoang’s husband, Mr Nguyen Thien Hoang Ahn which described the inspector’s visit and pointed out the following alleged errors in their report:

    i)the house has one bathroom, not two as stated in the report[28];

    ii)there were two children in the house – the landlady’s niece and nephew – not three as stated in the report[29];

    iii)photos of the landlady were in the lounge and dining rooms, and not elsewhere in the house as stated in the report[30];

    iv)there were two televisions in the house, not three as stated in the report[31];

    v)Mr Nguyen was not asked questions about how he and Ms Hoang met, contrary to the information in the report[32];

    vi)the inspectors did not examine the couple’s bedroom, and only glanced at it, and in fact there were photos of the couple in that room[33];

    vii)the inspectors did sight the third bedroom, contrary to the inspectors’ statement that they did not;

    viii)Mr Nguyen also explained evidence given at hearing about his and his wife’s travel to Vietnam.

    c)A statutory declaration of Ms Cam Hnung Truong, the couple’s landlady in which her travel arrangements to Vietnam were explained[34].

    [28] CB 276 [2]

    [29] CB 276 [3]-[4]

    [30] CB 276 [5]

    [31] CB 276 [6]

    [32] CB 276 [8]

    [33] CB 277 [9]

    [34] CB 279-280

The present application

1. Ms Hoang relies upon a judicial review application filed on 22 October 2012 which contains a single ground of review:

   1. The Tribunal failed to act in a manner that satisfied the requirements of natural justice.

   Particulars

   (a) The Tribunal failed to take action to resolved disputes of fact by either or both;

   (i)Obtaining for itself any relevant file and contemporaneous notes kept by Immigration Officers who conducted a site inspection of the applicant’s home on or about 6 May 2010.

   (ii) Summonsing the Immigration Officers who conducted a site inspection of the applicant’s home on or about 6 May 2010 to give evidence before the Tribunal as to their method of operating and the circumstances in which they wrote their report.

2. I have before me as evidence the book of relevant documents filed on 16 November 2012.  I also received as an exhibit[35] email correspondence between the parties concerning the non existence (or non retention) of any notes taken by the officers who made the home visit.

   [35] exhibit A1

3. Both parties made oral and written submissions.

Consideration

Relevant legislation

1. At the time of the Tribunal decision, the Migration Act 1958 (Cth) (Migration Act), in s.5F(1) defined a person as being the “spouse” of another person if the two persons were in a married relationship. Such persons were, pursuant to s.5F(2), in a married relationship if they were married to each other under a marriage valid for the purposes of the Migration Act, if they had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and if the relationship between them is genuine and continuing and they live together, or do not live separately and apart on a permanent basis.

2. Regulation 1.15A of the Migration Regulations 1994 (Cth) (Migration Regulations) set out the criteria for considering whether any of the conditions in s.5F(2) existed. As relevant, regulation 1.15A required the Minister, when considering an application for a Partner (Residence) (Class BS) visa; or Partner (Temporary) (Class UK) visa to consider all the circumstances of the relationship, including the matters set out in regulation 1.15A(3) which were as follows:

   (a)    the financial aspects of the relationship, including:

   (i)any joint ownership of real estate or other major assets; and

   (ii)any joint liabilities; and

   (iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)the basis of any sharing of day‑to‑day household expenses; and

   (b)    the nature of the household, including:

   (i)     any joint responsibility for the care and support of children; and

   (ii)    the living arrangements of the persons; and

   (iii)   any sharing of the responsibility for housework; and

   (c)     the social aspects of the relationship, including:

   (i)whether the persons represent themselves to other people as being married to each other; and

   (ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including:

   (i)the duration of the relationship; and

   (ii)the length of time during which the persons have lived together; and

   (iii)the degree of companionship and emotional support that the persons draw from each other; and

   (iv)whether the persons see the relationship as a long‑term one.

The Tribunal decision

1. The Tribunal considered each aspect of regulation 1.15A(3) in finding that the couple were not in a spousal relationship. Central to its decision was the report prepared by the two BFU inspectors who conducted the home visit on 6 May 2010. 

2. As to that report and Mr Nguyen’s disputing allegations of fact contained in it, the Tribunal found that[36]:

   a)the home report was prepared shortly after the actual visit, and the details were likely to have been fresh in the mind of the authors of the report. On the other hand, Mr Nguyen’s recollections were then two years old;

   b)the inspectors may have been tired, as Mr Nguyen suggested, but that does not mean that the report was incorrect in its key findings; and

   c)there is no suggestion that the inspectors conducted an audit or intensive search of the premises and the Tribunal was not persuaded that miscounting the number of television sets (for example) somehow invalidated the whole report. The Tribunal preferred the information in the report as to the existence of a large photograph of Ms Truong in what was said to be the marital bedroom, and of other disputed facts, to that of Mr Nguyen.

   [36] at CB 311

3. The Tribunal thus found, very largely on the basis of the report, that Mr Nguyen and Ms Hoang do not cohabit.

4. After brief consideration of the social aspects of the relationship and the parties’ commitment to each other the Tribunal affirmed the decision under review.  Its comments at [78][37] that, “the home visit exposes the reality of the situation” was clearly decisive. The Tribunal placed more weight on this, than on the parties’ evidence.

   [37] CB 312

What was the legal authority for the home visit?

1. I asked counsel for the Minister to identify the legal authority for the home visit conducted by the BFU inspectors. Counsel provided a note on that question following the trial of the matter. The Migration Act includes provisions empowering inspections in Part 2, Division 3A, subdivision F. However, those provisions do not apply to partner or spouse visas[38]. Further, the search warrant provisions in s.251 of the Migration Act do not appear to be relevant to partner or spouse visas, by reason of s.251(6). Counsel for the Minister was unable to identify any relevant source of power other than s.56(1) of the Migration Act, which provides a general power for the Minister to “get any information that he or she considers relevant”, analogous to the Tribunal’s power under s.359(1). That power is a power to inquire, not a power of entry or search. It follows, in my view, that the BFU officers were only lawfully in Mr Nguyen’s home if they were invitees. The Home Visit Report does not state on what basis the BFU officers gained entry to the home, other than to say they asked to speak with Mr Nguyen. It was not part of Ms Hoang’s case that the BFU officers were not lawfully on the premises. I have proceeded on the basis that their presence was lawful because that presence was permitted or invited by Mr Nguyen.

   [38] see s.140A of the Migration Act and regulation 2.56 of the Migration Regulations

Was the process followed by the Tribunal fair?

1. The issue raised by Ms Hoang was whether the Tribunal complied with the requirements of procedural fairness in its treatment of the information in the Minister’s Department’s BFU report. In her submissions she draws attention to the passage of time (six days) between the home visit and the preparation of the report. She observes that the home visit was conducted by officers who could be expected to conduct many such visits. She draws attention to discrepancies between the report and Mr Nguyen’s evidence which went to the layout and contents of the house. Those discrepancies, which were also emphasised in their response made on Ms Hoang’s behalf to the Tribunal’s s.359A letter, challenge the reliability of the report of the home visit and the inferences drawn from it.

2. Ms Hoang contends that in view of the doubts about the reliability of the report, fairness required the Tribunal to make an inquiry, either by seeking to obtain any extant notes to test the accuracy of the report, or to obtain direct evidence from the BFU inspectors, at least as to when and in what circumstances the report was prepared.  Counsel for Ms Hoang, in his oral submissions, referred to the apparent absence of any notes by the inspectors as severely questioning the reliability of the report. 

3. Ms Hoang submits that the Tribunal could have made inquiries pursuant to s.363(1)(d) and s.363(3) of the Migration Act which provide the Tribunal with discretionary powers of inquiry. I accept that those powers must be exercised fairly[39].

   [39] See M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319

4. Ms Hoang submits that s.357A of the Migration Act does not apply because nothing in Division 5 of Part 5 of the Migration Act deals with how the discretion in s.363 is to be exercised.

5. In my view, while the Tribunal had the power to make inquiries about the inspection report or to call the officers who prepared it to give evidence, it was under no duty to do so and its failure to do so was not unfair in the circumstances of the case.

6. In relation to any asserted duty to inquire, I agree with the Minister’s submissions.

7. In Minister for Immigration v SZIAI[40], the High Court clarified the nature of a duty to inquire.

   [40] [2009] HCA 39; (2009) 259 ALR 429

8. Chief Justice French and Gummow, Hayne, Crennan, Kiefel and Bell JJ relevantly held[41]:

   Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

   [emphasis added]

   [41] at 436 [25]‑[26]

1. The last two sentences of [25] of SZIAI (the first paragraph extracted above) suggests that the majority of the High Court proceeded on the basis there are two limbs to the characterisation of the existence of any jurisdictional error based upon a failure to inquire in a particular case.

2. First, at its highest, for the failure to inquire to have jurisdictional significance, there must be an obvious inquiry which can be made about a critical fact, the existence of which is easily ascertained.

3. This suggests that the need to inquire must be capable of being ascertained by the Tribunal at the time it makes its decision and on the basis of the material before it.

4. Secondly, even if the failure to inquire has jurisdictional significance, there may be reasons a court will refuse relief in a particular case. The High Court’s discussion of utility and futility in [26] of SZIAI (the second paragraph extracted above) is best understood as directed to that question.

5. In SZMYO v Minister for Immigration[42], Gilmour J accepted that the Refugee Review Tribunal, which has powers which are relevantly the same to those at issue in the present case, had a discretion rather than a duty to investigate[43].

   [42] [2011] FCA 506; (2011) 121 ALD 272

   [43] at 283 [59]

6. In that case, his Honour held that the Tribunal fell into jurisdictional error in failing to arrange for the relevant investigation because taking that approach “would have provided the appellant with a meaningful opportunity to comment or respond to” a letter from the Refugee Review Tribunal in compliance with s.424A of the Migration Act[44].  In other words, the exercise of discretion in that case miscarried.

   [44] at 284 [63]

7. In M164/2002 v Minister for Immigration[45], Lee J held (at [76]):

   If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s.427(1)(d).

   [emphasis added]

   [45] [2006] FCAFC 16

8. This statement should be read so as to be consistent with the High Court’s statement of principle in SZIAI.

9. Finally, in Prasad v Minister for Immigration[46], which is the highest point of the principle which has received support, Wilcox J held (at 169‑170):

   Equally, it is exercised in an improper manner if the decision-maker makes his decision – which perhaps in itself, reasonably reflects the material before him – in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.

   [emphasis added]

   [46] (1985) 6 FCR 155

10. The Minister does not accept there is a general common law duty to inquire but further contends that if such a duty exists, there was no breach in the present case.

11. Several criteria for the assessment of the jurisdictional significance of a failure to inquire can be drawn from the cases outlined above.  Those are:

    a)there must be some critical or central fact at issue;

    b)the existence of that fact must be easily ascertained or the material readily available;

    c)there must be an obvious inquiry which could be made;

    d)there must be something on the record to indicate that further inquiry “could have yielded a useful result”;

    e)there must be no other reason to suppose that further inquiry is futile.

12. The Minister submits that the first three criteria are relevant to the question of jurisdictional error, if any, while the last two are relevant to the question of relief if error is proved.

13. In the present case, I accept the Minister’s contention that Ms Hoang’s case fails on application of these criteria.

No critical fact which could be easily ascertained

1. Ms Hoang has not identified any critical or central fact which would be easily ascertained should the Tribunal call for “any relevant file and contemporaneous notes” or summons the Departmental officers “to give evidence before the Tribunal as to their method of operating and the circumstances in which they wrote their report”.

2. The ultimate question before the Tribunal was whether Ms Hoang and her husband had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship was genuine and continuing.

3. The BFU officers’ notes (if they existed), and any evidence the officers could give, could not lead to an easy ascertainment of that fact.

4. The best that could be said for the BFU officers’ notes (if any), and any evidence the officers could give, is that they would have added more information of the same nature as that already before the Tribunal.  The Tribunal’s task would not have changed. The notes and any evidence would not, in and of themselves, have provided answers to the questions the Tribunal was required to consider.

No obvious inquiry

1. Ms Hoang submits the Tribunal should have made “an inquiry, either by seeking to obtain any extant notes to test the accuracy of the report, or to obtain direct evidence from the inspectors”[47].

   [47] applicant’s written submissions at 10 [31]

2. Those may be obvious inquiries in the context of litigation in a court, where the rules of evidence apply, where there is an onus of proof borne by one party or another and a clear standard of proof.  However, where there are no such rules or procedural boundaries, those inquiries are not so obvious.

3. The Tribunal was entitled to rely on the information available to it. In light of the material already available to the Tribunal, in relation to the inquiries proposed by Ms Hoang, the need for them was not obvious. With reference to M164, the Tribunal did not (and did not propose to) “draw adverse inferences from material before it on grounds that [were] slight” (emphasis added).

4. The Tribunal plainly considered it had sufficient material before it. It was entitled to form that view. Further, these principles are to be applied in the context of Part 5, Division 5 of the Migration Act.

5. Section 363 relevantly “deals” with “matters” including making investigations and issuing summonses[48]. Similarly, s.359 deals with the Tribunal’s power to get information.

   [48] Khan v Minister for Immigration [2011] FCAFC 21; (2011) 192 FCR 173, 185 [40] (Buchanan J), referring to Saeed v Minister for Immigration [2010] HCA 23; (2010) 241 CLR 252, 267 [42]

6. Section 359(1) of the Migration Act provides “the Tribunal may get any information that it considers relevant”; s.363(1)(d) provides “the Tribunal may … require the Secretary to arrange for the making of any investigation … that the Tribunal thinks necessary with respect to the review”. Both of these provisions require the Tribunal to be relevantly satisfied, either that information is relevant or that an investigation is necessary.

7. By virtue of s.357A of the Migration Act, any common law duty to inquire is accordingly limited by reference to the satisfaction of the Tribunal. Ms Hoang has not established that the Tribunal was not (or could not be) so satisfied.

8. Accordingly, there was no obvious need for further inquiries, particularly not those proposed by Ms Hoang.

9. Similarly, it was not obvious that making the inquiries proposed by Ms Hoang would lead to material which was centrally relevant[49].

   [49] Prasad at 169‑170

No request made

1. Further, Ms Hoang was represented before the Tribunal. Had the inquiries now proposed been obvious at the time, it might be supposed that her representative would have proposed those inquiries then. However, no request was made to the Tribunal to call the Departmental officers to be witnesses, nor was any request made for the Tribunal to conduct any kind of investigation or inquiry in relation to any notes made by the Departmental officers.

2. This lends significant weight to the proposition that the proposed inquiries were not obvious in the sense discussed by the authorities. At the hearing before me counsel for Ms Hoang drew attention to the fact that the s.359A letter sent by the Tribunal failed to mention the time between the home visit and the preparation of the report. However, that time gap should have been apparent from the copy of the report provided to Ms Hoang with the Tribunal’s hearing invitation.

No jurisdictionally relevant failure to inquire established

1. For the reasons outlined above, there is no identified central or critical fact which could be easily ascertained by making the inquiries proposed by Ms Hoang. Further, those inquiries, or the need for them, are not, and would not have been, obvious.

2. Accordingly, whilst the Tribunal was entitled to make inquiries, Ms Hoang has not established that its failure to do so has jurisdictional significance in the present case.

Nothing on the record suggests any useful result

1. Further, there is nothing on the record which suggests any inquiry would have yielded any useful result.

2. Ms Hoang’s written submissions at [31] suggest questions of the kind which might be asked in cross-examination in a court.  While it might well be the case that the Tribunal could have asked such questions had it been able to examine notes or ask questions of the Departmental officers, no question of fact could have been determined thereby.

3. Ultimately, even having asked those questions, the Tribunal would have been required to weigh up the evidence. On the one hand, it had the Home Visit Report. On the other hand, it had no evidence which went beyond the “face value” of the relationship[50].

   [50] CB 312 [77]

4. Even when provided with the full text of the Home Visit Report, Ms Hoang and her husband did not provide any additional material which satisfied the Tribunal that they had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship was genuine and continuing.  They could have produced their landlady (Ms Truong – who prepared a statutory declaration) as a witness, but did not.

5. This consideration as militating against any error in failing to inquire in the present case is strengthened when the facts from the Home Visit Report on which the Tribunal relied are considered.  Those are[51]:

   a)Ms Truong’s presence in the room;

   b)the presence of Ms Truong’s niece and nephew in the room;

   c)the photograph of Ms Truong above the bed in Ms Hoang’s husband’s room;

   d)the documents in Ms Truong’s name in the room; and

   e)Ms Hoang’s husband’s inability to provide any documents or items which could show that Ms Hoang lived in the house.

   [51] at CB 311 [71], final two bullet points

6. There is nothing on the record to indicate that the inquiries proposed by Ms Hoang could have yielded any useful result in relation to these considerations, particularly given Ms Hoang, her husband and Ms Truong accepted (a), (b) and (e) above and the Tribunal considered whether the statement in the Home Visit Report as to the photograph of Ms Truong above the bed might be “a case of mistaken identity”[52].

   [52] CB 311.5

7. The responses made by Ms Hoang, her husband and Ms Truong to the Home Visit Report also provides a significant point of distinction between this case and SZMYO. Specifically, Ms Hoang was able to give a meaningful response to the 359A letter. It is pure speculation whether her response could have been any different, or any more meaningful, had the inquiries proposed by Ms Hoang been made, and, in particular, had the kinds of questions suggested in her written submissions at [31] been asked.

Any inquiry may have been futile

1. Ms Hoang was given an opportunity to respond to the information in the Home Visit Report.

2. Apart from a discussion of the Home Visit Report during the hearing, the Tribunal sent Ms Hoang the 359A letter which, as noted above, set out the text of the Home Visit Report, among other information. Ms Hoang, her husband and Ms Truong all provided statements in response to the letter.

3. Those statements did not go far beyond the “bare denial” referred to in SZIAI. They did not add anything. They certainly did not provide positive evidence on which the Tribunal could make its determination of the critical issue, namely, whether Ms Hoang and her husband had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship was genuine and continuing – or even a determination of the question whether Ms Hoang lived at the relevant address.

4. Ms Hoang has not identified how her response and that of her husband and Ms Truong would have been any different had the Tribunal made the inquiries Ms Hoang now says it should make.

5. Accordingly, the inquiries proposed by Ms Hoang are unlikely to have proved useful and may have been futile in the sense that word was used by the High Court in SZIAI.

Conclusion

1. I have concluded that the Tribunal did not fall into jurisdictional error in dealing with the Home Visit Report. Ms Hoang was given the opportunity, both at the hearing conducted by the Tribunal, and in the subsequent written invitation to comment, to challenge the Home Visit Report. She took that opportunity which was, in my view, a sufficient opportunity to discharge the Tribunal’s obligation to conduct a fair hearing pursuant to s.360. Further, procedural fairness in this case did not require the Tribunal to exercise its discretion to undertake further inquiries pursuant to s.363. There was nothing raised by or on behalf of Ms Hoang which compelled any further inquiry. Neither was there anything which was, or should have been apparent to the Tribunal to compel further inquiry. There was no failure of the Tribunal’s duty of review, no want of procedural fairness and the Tribunal’s failure to inquire was not unreasonable.

2. I will order that the application be dismissed.

3. I will hear the parties as to costs.

I certify that the preceding eight-three (83) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  31 May 2013